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October 2005, Volume 11, Number 4

Shortages, AgJOBS

There were many reports of "farm labor shortages" in the Central Valley. The Fresno Bee on August 7, 2005 reported that the supply of farm workers was shrinking, citing reports that crews that usually have 20 to 25 people had only 15. Interviews with unauthorized workers reported that smugglers charged $1,800 in 2005 to walk across the border and $2,500 to ride across in a vehicle, and a 28-year old worker reported being caught twice in eight attempts.

The higher cost of crossing the border encourages some unauthorized Mexicans who elude the border patrol to remain in the US year-round and look for nonfarm jobs, as in construction and landscaping services, to repay smuggling costs.

The Los Angeles Times focused on labor contractor Fred Garza, who usually has 2,500 workers but reported only 1,500 in August 2005. Garza blamed tougher border enforcement and the booming construction industry for fewer workers showing up to work in his crews. Apprehensions on the border are down, and unauthorized workers reported that smuggling costs are up, citing charges of $1,500 to $2,000.

Reports of smaller crews have had no economic effects, such as higher wages, fruit not picked, or higher prices for grapes and other labor-intensive fresh fruits. Meanwhile, some 7,000 housing permits were issued in Fresno county. Ex-field workers employed in Fresno construction pointed to higher wages as a reason for leaving the fields, noting that they earn at least $10 an hour in construction compared to the usual $6.75 an hour in the fields. Construction workers also said that they had better working conditions and more opportunities for advancement.

California has about 473,000 bearing acres of wine grapes, 83,000 bearing acres of table grapes, and 250,000 acres of raisin grapes. About 20 percent of the 800,000 total acres are Thompson Seedless, which can be used for wine, table grapes, or raisins. Growers often wait until shortly before harvest to decide whether picking mechanically for wine grapes or concentrate (natural grape sweetener) is most profitable.

In 2005, a relatively high raisin price of $1,210 a ton and a low price of $100 a ton for Thompsons used for wine increased the demand for labor to harvest raisin grapes (In 2003, growers were paid $90 a ton if their grapes were used for wine or concentrate, up from $65 in 2002 and $75 in 2001). About 100,000 acres of grapes, half Thompson seedless, were removed in the San Joaquin Valley between 2000 and 2005. The Raisin Administrative Committee estimated the 2005 raisin crop at 266,000 tons, and recommended holding 26 percent of the crop in reserve, which means that raisin growers would not be paid immediately for 26 percent of their raisins.

There is always a "labor shortage" in the raisin grape industry, primarily because farmers wait until the sugar content of the grapes is high enough to begin harvesting, knowing that the longer they wait, the higher the sugar but also the more danger that rain will damage the drying grapes in the vineyards. The raisin harvest was delayed in 2005 by an unusually wet spring, which contributed to the urgency of farmers finding crews of harvesters. Some growers did pay more for harvesting than the usual 25 cents per tray (25 pounds of green grapes) and a 25 percent overhead to the FLC to cover payroll taxes, toilets, recordkeeping, and profits.

In order to get payments from federal insurance for rain damage to drying raisins, grapes had to be cut and on the ground by September 20, 2005. Some raisin growers in October 2005 asked for a "disaster declaration" because of "labor shortages." However, the Fresno County deputy agricultural commissioner noted that disasters are defined as events in which at least 35 percent of a crop is damaged, and the most credible estimates were that less than five percent of the raisin crop was damaged by September 2005 rains.

There are mechanical alternatives to hand harvesting raisin grapes such as the dried on the vine technique that cuts the stems on which bunches of grapes grow and allows the dried grapes to be harvested with a wine grape harvester. An estimated 30 percent of raisins harvested were harvested with some form of mechanical assistance in 2005.

Some of the loudest voices calling for AgJOBS came from the Imperial Valley, which does not begin to harvest vegetable crops until November. Early in 2005, the Border Patrol stopped some of the buses that carry farm workers who live in Mexico to jobs on US farms, detaining those without proper documents. Some lettuce and other vegetables were not harvested because of low prices and difficulty finding enough workers, according to some growers.

AgJOBS. The Agricultural Jobs, Benefits and Security Act would allow currently unauthorized farm workers to earn an immigrant status and make it easier for farmers to hire legal H-2A guest workers. To qualify for an AgJOBS legal temporary resident permit, unauthorized or H-2A workers would have to have done at least 575 hours or 100 days of farm work during any 12 consecutive months between July 1, 2003 and December 31, 2004.

Applicants for temporary permits would have to establish a "just and reasonable inference" of eligible employment, which could be satisfied with an affidavit from an employer or co-workers asserting that the worker did the required work, even if the work was done under a different name. Strict confidentiality provisions prohibit the government from using applicant information to prosecute employers or workers for past violations of tax or welfare laws.

Once the worker qualified for temporary resident status, his spouse and children would be permitted to stay in the United States, but could not work. When the worker earned immigrant status, spouses and children would also receive it, regardless of queues. Legal temporary residents would be required to perform at least 360 days (at least one hour of farm work constitutes a day) of "agricultural labor" during the first 2,555 days (seven years) after enactment of AgJOBS. Unlike H-2A workers, temporary residents would not be tied to a particular US employer; they could change jobs and do nonfarm jobs as well.

Under AgJOBS, the H-2A program would be changed from a certification to an attestation program. Under certification, the border gate remains closed until the US employer convinces the government that it was unable to recruit US workers at government-set wages and working conditions. Under attestation, by contrast, the employer merely attests that he is offering prevailing wages, and DOL must approve employer applications for guest workers, which enables employers to bring guest workers through border gates to US jobs. Enforcement in attestation programs generally follows complaints.

US employers would no longer have to file job offers via the interstate clearance job order system of the US Employment Service to show that US workers are unavailable. Farm employers could send job orders to local ES offices 28 days in advance of the date on which they need workers, down from the current 45 days.

The AEWR that farmers must offer local workers and pay to H-2A workers would be frozen at the 2003 rate for three years, after which annual increases would be capped at four percent a year. In a key victory for California growers, most of whom do not offer housing to the workers employed on their farms, employers would be able to offer a housing allowance rather than free housing if a state's governor certified that there was sufficient housing available for out-of-area workers. AgJOBS would also change the current H-2A requirement to provide housing to workers who "are not reasonably able to return to their residence within the same day" to a more limited requirement- only workers who live "beyond normal commuting distance" would be provided with housing.

What would happen if AgJOBS was enacted? Bruce Goldstein, executive director of the Farmworker Justice Fund said that: "We're hoping that the newly legalized workers will join labor unions to make demands on their employers for better wages and working conditions." FJF predicts that, with AgJOBS, the number of farm jobs certified to be filled with H-2A workers, now about 40,000 a year, would decline.

SAW-RAW. The Immigration Reform and Control Act of 1986 included two legalization programs, one for farm workers who had done at least 90 days of "seasonal agricultural services" in the US in the 12-month period ending May 1, 1986 and the other for unauthorized foreigners in the US since January 1, 1982. Some 1.3 million farm workers applied under the SAW program, 81 percent Mexican, and 1.8 million applied under the regular program, 70 percent Mexican. About 52 percent of the SAW and 54 percent of the regular applications were filed in California.

Unauthorized foreigners could apply directly to INS for legal status or via Qualified Designated Entities, known as QDEs. The QDE that assisted the most farm workers was Alien Legalization for Agriculture or ALFA, which assisted 52,000 applicants, including almost 20,000 in Mexico--17,000 at the Mexicali-Calexico border crossing, 500 at Otay Mesa, and 2,000 in Mexico City.

Fraud was recognized as a problem during the SAW application program. Robert Pear wrote on November 5, 1987 that the INS believed that half of the 43,000 applications filed in Florida included false statements, with applicants during personal interviews asserting that they used ladders to pick strawberries or that they harvested baked beans. Many presented false affidavits from FLCs, and when asked whether the FLC they worked for was white or black, many got the race wrong.

If SAWs left farm work so quickly that farm labor shortages developed, a Replenishment Agricultural Worker program could admit additional workers in a simplified procedure, and they could earn an immigrant status by doing US farm work. Some 617,000 foreigners applied for the RAW program, including 89 percent who gave US addresses to the INS to be contacted (15 percent of these US RAW applicants reported close relatives who were SAWs, which gave them priority for RAW visas). However, there were no labor shortages during the 1989-1993 RAW program, and it expired unused.

The first California farm employer fined under IRCA was S & A Farm Contractors of Madera, assessed $153,000 in February 1989 when over half of the 400 workers on its payroll did not have properly completed I-9 forms.

Solomon Moore, "Slim Pickings in Farm Labor Pool," Los Angeles Times, August 14, 2005. Vanessa Col¢n, "Migrant laborers are finding work in other occupations," Fresno Bee, August 7, 2005. Robert Pear, "Wide fraud is found among illegal aliens who seek amnesty," New York Times, November 5, 1987.